FIXING SUPERFUND--PART 1: THE POLLUTERS' PLAN TO WRECK SUPERFUND

The City Council of New Bedford, Massachusetts has begun a
campaign of civil disobedience to try to stop U.S. Environmental
Protection Agency (EPA) from siting a mobile incinerator in the
town's heavily-Portuguese North End, where EPA plans to burn 7500
tons (15 million pounds) of PCB-contaminated soil dredged from
the Acushnet River and New Bedford Harbor, 55 miles south of
Boston.[1] PCBs (polychlorinated biphenyls) are a group of toxic
industrial chemicals, sold by Monsanto and others between 1929
and 1976, now banned in the U.S. Five industrial polluters
dumped PCBs and toxic metals (lead, cadmium, and chromium) into
the Acushnet River estuary from 1947 to 1978; in 1983, 18,000
acres of the river and harbor were designated a Superfund site
requiring cleanup. The area has been closed to lobstering and
fishing, and recreational development has been curtailed by the
pollution.[2]

In the early 1990s, EPA decided dredging and incineration were
the best ways to get rid of the PCBs. Since that time, the world
has learned that incinerators cannot achieve the destruction
efficiencies required by EPA regulations, and therefore
incinerator emissions are larger than EPA has said they would be.
(See RHWN #280, #312 and #325.) Despite these revelations, EPA
officials continue to insist that toxic waste incinerators are
safe, even in residential neighborhoods. As a result, citizen
opposition to incineration has reached new heights, and
confidence in EPA has reached new depths.

The New Bedford City Council in September 1993 refused to allow
water and electrical hookups for EPA's incinerator, and they
passed an ordinance requiring special permission for the
transport of incinerator equipment over city streets. In
response, Carol Browner's EPA has said it intends to fine the
town $25,000 per day, or $9.1 million per year.

To city councilors, it is a clear case of environmental racism.
New Bedford's population is 22% minority and the percentage near
the incinerator site is even higher. "They don't put it [the
incinerator] in Brookline or Cohasset," says George Rogers, the
councilor who has led the fight. An editorial in the local
paper, the STANDARD-TIMES, said, "Perhaps the people of New
Bedford ought to know better than to think they have some control
over their own destiny. But, for now, self respect demands that
a stand be taken against the EPA."

If the town continues to challenge EPA, it will end up in court,
where EPA will almost certainly win. It has now been
well-established by courts that the Superfund law gives citizens
the right to challenge an EPA cleanup ONLY AFTER THE CLEANUP HAS
BEEN COMPLETED. Even if citizens are convinced the cleanup will
poison them worse than doing nothing, they have no right to
challenge the poisoning until after it is over. (This appears to
run counter to the 5th amendment of the Constitution, but it
would take years to litigate the point, and in the meantime EPA
could press ahead with its incinerator project.)

This was precisely the legal issue that finally got the citizens
of Jacksonville, Arkansas thrown out of court. A federal
district judge in Little Rock concluded that the citizens of
Jacksonville were likely to be harmed by the Vertac incinerator
(which is burning leftover dioxin-contaminated chemical-warfare
agents from the U.S. war effort in Vietnam) and the district
judge ordered Vertac shut. (See RHWN #328.) Carol Browner's EPA
appealed, insisting on the agency's right to continue spewing
dioxin into a residential neighborhood; an appeals court ruled
that citizens could challenge EPA's method of cleanup, but ONLY
AFTER THE CLEANUP WAS COMPLETED. No doubt the Vertac decision
emboldened EPA to twist arms in New Bedford--a blue-collar
community that certainly cannot afford to pay $25,000 per day to
prevent what it considers a poisoning.

* * *

The New Bedford fight represents only the tip of the iceberg of
Superfund's problems. Superfund is unpopular with almost
everyone except the lawyers, consultants, and former EPA
officials it has made rich. The program was established by
Congress in 1980 to speed the cleanup of chemical dump sites like
Love Canal. From the start, the key principle of Superfund has
been, "the polluter pays." And from the start, the polluters
have opposed this principle. They argue that the public should
pay because it was the public who created the pollution by buying
products.

At the beginning, Congress developed a simple formula: they told
EPA to identify dangerous dump sites, find the culprits, and make
them pay for cleanup.

As the program developed, two things happened: First, many EPA
officials corrupted the program mercilessly, turning it into a
cash cow for their friends, whom they then went to work for.[3]
Second, during the 1980s, the polluters developed a strategy for
wrecking the program, chiefly to get rid of the "polluter pays"
provision. That strategy may pay off soon; the current Superfund
program expires in September, 1994, and Congress is beginning now
to debate ways to change the program.

During the Reagan/Bush years, EPA pumped billions of dollars into
about 2 dozen Superfund contractors, some of whom billed the
agency for Christmas parties, maintenance of potted plants, and
bloated plans for cleanup. For example, EPA auditors found that
the U.S. Radium site in Woodside, Queens (N.Y.) could be cleaned
up for $1.4 million, but the contractor was charging EPA $3
million.[3] This was not unusual. What was unusual was for EPA
to make an independent assessment of costs rather than taking the
contractor's word for it. On several occasions, Congressional
hearings, and studies by the General Accounting Office (GAO),
highlighted waste, fraud and abuse in the Superfund program, yet
little changed.

As the '80s progressed, dozens of top EPA employees quit the
agency and went to work for companies with fat Superfund
contracts. Former EPA administrators William Ruckelshaus, Doug
Costle, and Lee Thomas all went to work for Superfund contractors
after they left EPA. Mr. Reagan's first EPA administrator, Ann
Gorsuch Burford, and her Superfund director, Rita Lavelle,
distinguished themselves by going to work for Superfund
contractors BEFORE they left EPA. And while he was head of the
Conservation Foundation (prior to becoming head of EPA), William
Reilly took a contract from a group of polluters whose aim was to
get rid of the "polluter pays" principle in Superfund.

Meanwhile, major polluters and their insurance companies
developed their own strategy for getting rid of the polluter pays
principle: they set out to wreck Superfund. This strategy has
been described and documented in articles in the NEW YORK TIMES
and the WALL STREET JOURNAL. The strategy has four components:
(1) deny responsibility; (2) sue local governments; (3) sue small
companies; (4) mount a political campaign to get rid of the
"polluter pays" principle.

The WALL STREET JOURNAL reported in June of 1992 that denial was
a principle part of industry's strategy for dealing with
Superfund.[4]

By simply denying responsibility for pollution on their own
property (Richard Nixon's associates might have called it
"stonewalling"), polluters snarled EPA in legal struggles that
continued for years.

Next, polluters facing costs of cleanup of big dumps brought
lawsuits against small municipalities, school districts, and
small businesses that used the same dumps. The Superfund law
doesn't distinguish between a 55-gallon drum full of toxics and
an empty bottle of drain cleaner, so anyone who used a local
landfill could be hauled into court by the major dumpers. A
pizza parlor that sent an empty pesticide can to the local
landfill would find itself faced with a lawsuit, two inches
thick, brought by some chemical company that was, in turn, being
sued by EPA.[5]

The effect was to turn thousands of municipalities, counties and
small businesses into opponents of Superfund. The polluters'
strategy has worked beautifully.

* * *

Grass-roots activists are now working together to develop a
coherent position on ways to improve Superfund. To stay in the
loop, contact: